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Quebec Adopts Bill 102, Overhauls Its Environmental Approval Regime

On March 23, 2017, the Quebec national assembly adopted Bill 102 to amend the Environment Quality Act (EQA). The Bill will result in significant changes to Quebec’s environmental approval regime.

Bill 102 was tabled on June 7, 2016, following the publication of a green paper by Quebec’s Minister of Sustainable Development, Environment and the Fight against Climate Change, David Heurtel, in 2015 and parliamentary hearings held before a national assembly committee. For further details on Bill 102 and the green paper, please refer to the following Blakes Bulletins:

Certain aspects of Bill 102 were criticized by industry representatives, particularly the broad and often unchecked discretionary powers granted to the Quebec minister and government. Concerns were expressed that these wide powers could impact the legal security currently associated with environmental approvals by, for example, allowing the provincial government to require that an environmental impact assessment process be followed for projects that are not subject to such a process by way of regulation, or by granting the minister powers to include conditions or restrictions on approvals or to modify or amend an approval after it is issued. Concerns that the legislation offers insufficient protection for industrial secrets and other confidential information contained in documents submitted to the ministry in support of approval applications have also been raised. Despite these criticisms, no significant changes were made to Bill 102 and the final version includes the broad administrative powers granted to the minister and government.

The amendments to the EQA will come into force progressively. A few amendments came into force on March 23, 2017, the day Bill 102 was adopted. However, most of the amendments will come into force on March 23, 2018, one year after the date of adoption, to allow regulations to be drafted so that the changes can be operational. Finally, some provisions will come into effect on March 23, 2019.

Below is a brief overview of the key changes:

Approval based on classification of environmental risk — The type of approval required for a project will be based on the level of environmental risk associated with the project. Activities will be classified based on four categories of environmental risk: (i) high, (ii) moderate, (iii) low; and (iv) negligible. The new approval regime will come into force on March 23, 2018. It is expected that this approach will ease administrative requirements for low-risk activities.

High-risk projects will continue to be subject to the environmental assessment and review procedure and will need to be issued a certificate of authorization by Cabinet Decree before such projects can proceed. Projects that are subject to this requirement are currently listed in regulation.

Moderate-risk projects will remain subject to the requirement to obtain a certificate of authorization from the minister. The ministry has indicated that new standardized approval application forms will be made available on its website so as to increase the predictability in analyzing and processing approval applications.

The EQA will provide for a new type of authorization for low-risk projects. Proponents who wish to undertake this type of activity will be required to file a declaration of compliance with certain performance standards that will be specified in regulations. Activities can begin 30 days after filing a declaration, resulting in a significant reduction in delays for activities in this category. Low-risk activities will be set out in regulations that are planned to be in force on March 23, 2018. In the interim, as of the March 23, 2017, the following activities can proceed on the basis of a declaration of compliance if standards and conditions specified in the EQA are met:

Certain extensions of aqueduct or sewer networks

Rehabilitation work involving the excavation of no more than 10,000 cubic metre of soil

The establishment and operation of an asphalt plant, subject to certain exceptions

Finally, proponents that undertake activities that are classified as being of negligible risk, pursuant to regulation, will be exempt from requirements to obtain an approval. The regulation listing these exempt activities is to be effective by March 23, 2018. It is expected that these activities will be similar to those that are currently listed as being exempt from an approval requirement in the Regulation respecting the application of the Environment Quality Act.

Single type of authorization for projects — Currently, depending on a project’s components, several types of authorizations may be required to carry out an activity. As of March 23, 2018, a single type of ministerial authorization will be required for a given project, thereby avoiding multiple permits applications and approvals.

Municipal certificate — As of March 23, 2017, a proponent is no longer required to submit a municipal certificate attesting that a project does not contravene municipal bylaws with its application for a certificate of authorization. Historically, this requirement has occasionally resulted in processing delays in the approval of applications. Proponents will now only be required to notify the local municipality of a new project by submitting a project notice.

Environmental impact assessment procedure — The EQA will grant the Quebec government the power, in exceptional circumstances, to designate a project that is not specifically listed by regulation as being subject to the environmental impact assessment and review procedure. The government can make such a designation when it is of the view that the project presents major climate change issues, or raises major environmental risks and that public concerns with respect to such risks justify a review. This represents a significant change from the current environmental assessment regime in the province, which is based on a closed list. The government has indicated that it intends to review the current list of projects subject to environmental assessment. Various other modifications to the environmental impact assessment procedure are also expected.

Environmental impact assessment registry — A registry of projects subject to the environmental assessment procedure will be created and made publicly available as of March 23, 2018. The registry will include various types of information, which will be made available from the time a project notice is filed and throughout the environmental impact assessment process. The public will also have the opportunity to provide input early on in the impact assessment process, including making submissions to the minister on issues that should be considered in the environmental impact study.

Transfer of approvals — As of March 23, 2018, environmental approvals will be transferable by notifying the minister. Currently, certificates of authorization cannot be assigned unless the minister consents. Obtaining consent can, on average, take 130 days, which results in delays, particularly in the context of a transaction involving a sale of assets.

Access to information — Various types of information and documents are considered to be public under the EQA and can therefore be accessed, including new authorizations, applications for authorizations and related documents, information on low-risk projects subject to compliance declarations, decisions to deny an application for an authorization and approved or amended rehabilitation plans.

Public disclosure — Information whose disclosure would compromise the administration of justice or public safety or which relates to the location of threatened or vulnerable species will not be subject to public disclosure. Further, with respect to information contained in an application for an authorization, the proponent will be able to object to its disclosure by identifying the information it considers to be an industrial or commercial secret or of a confidential nature, and provide reasons justifying such claims. If the minister disagrees with the applicant’s reasons, he may make the document public by notifying the applicant. All public documents will be made available on a registry accessible on the ministry’s website, as they are filed with the ministry. Until the registry is created, these documents will be available upon request.

Climate change considerations and climate test — Effective March 23, 2018, the EQA will explicitly grant the minister the power to take into account considerations related to climate change in its analysis of a project’s impacts, including : (i) a project’s greenhouse gas (GHG) emissions; (ii) reduction measures that may be required for a project; (iii) the anticipated risks and impacts of climate change to a project and its receiving environment; and (iv) adaptation measures that may be required for a project. These broad powers raise several questions as to how they will be applied. The government has also announced a “climate test”, whereby a proponent of a project whose estimated GHG emissions exceed a set threshold will be required to demonstrate that its project is optimized from a GHG emission perspective and to justify the selected technology, processes and energy sources that will be used.

Land rehabilitation — The EQA now grants wider ministerial powers regarding land rehabilitation, which allow the minister to require a characterization study in the context of an application for an authorization and to impose conditions related to the removal, treatment or confinement of contaminants in certain circumstances. Beginning in March 2018, once a person permanently ceases its activities, the ministry will have the power to impose measures to avoid the release of contaminants into the environment and to ensure the decontamination of land and the dismantling of equipment and installations. This is in addition to the ministry’s power to impose requirements applicable to the cessation of activities provided by regulation or by an authorization.

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